on writs of certiorari to the supreme court of kansas

[June 23, 1997]

Justice Breyer,
with whom Justices Stevens and Souter join, and with whom Justice Ginsburg
joins as to Parts II and III, dissenting.

I agree with the majority that the Kansas Act's "definition of
`mental abnormality' " satisfies the "substantive" requirements of the
Due Process Clause. Ante, at 8. Kansas, however, concedes that Hendricks'
condition is treatable; yet the Act did not provide Hendricks (or others
like him) with any treatment until after his release date from prison and
only inadequate treatment thereafter. These, and certain other, special
features of the Act convince me that it was not simply an effort to commit
Hendricks civilly, but rather an effort to inflict further punishment upon
him. The Ex Post-Facto Clause therefore prohibits the Act's application
to Hendricks, who committed his crimes prior to its enactment.

I begin with the area of agreement. This Court has held that the civil
commitment of a "mentally ill" and-dangerous" person does not automatically
violate the Due Process Clause provided that the commitment takes place
pursuant to proper procedures and evidentiary standards. See Foucha
v. Louisiana,504
U.S. 71, 80 (1992); Addington v. Texas,441
U.S. 418, 426-427 (1979). The Kansas Supreme Court, however, held that
the Due Process Clause forbids application of the Act to Hendricks for
"substantive" reasons, i.e., irrespective of the procedures or evidentiary
standards used. The court reasoned that Kansas had not satisfied the "mentally
ill" requirement of the Due Process Clause because Hendricks was not "mentally
ill." In re Hendricks, 259 Kan. 246, 260-261, 912 P. 2d 129, 137-138
(1996). Moreover, Kansas had not satisfied what the court believed was
an additional "substantive due process" requirement, namely the provision
of treatment. Id., at 257-258, 912 P. 2d, at 136. I shall consider
each of these matters briefly.

In my view, the Due Process Clause permits Kansas to classify Hendricks
as a mentally ill and dangerous person for civil commitment purposes. Allen
v. Illinois,478
U.S. 364, 370-371, 373-375 (1986). I agree with the majority that the
Constitution gives States a degree of leeway in making this kind of determination.
Ante, at 11-12; Foucha, supra, at 87 (O'Connor, J.,
concurring in part and concurring in judgment); Jones v. United
States,463
U.S. 354, 365, n. 13 (1983). But, because I do not subscribe to all
of its reasoning, I shall set forth three sets of circumstances that, taken
together, convince me that Kansas has acted within the limits that the
Due Process Clause substantively sets.

First, the psychiatric profession itself classifies the kind of
problem from which Hendricks suffers as a serious mental disorder. E.g.,
American Psychiatric Assn., Diagnostic and Statistical Manual of Mental
Disorders 524-525, 527-528 (4th ed. 1994) (describing range of paraphilias
and discussing how stress aggravates pedophilic behavior); Abel & Rouleau,
Male Sex Offenders, in Handbook of Outpatient Treatment of Adults 271 (M.
Thase, B. Edelstein, & M. Hersen eds. 1990). I concede that professionals
also debate whether or not this disorder should be called a mental "illness."
See R. Slovenko, Psychiatry and Criminal Culpability 57 (1995) (citing
testimony that paraphilias are not mental illnesses); Schopp & Sturgis,
Sexual Predators and Legal Mental Illness for Civil Commitment, 13 Behav.
Sci. & The Law 437, 451-452 (1995) (same). Compare Brief for American
Psychiatric Association as Amicus Curiae 26 (mental illness requirement
not satisfied) with Brief for Menninger Clinic et al. as Amici Curiae
22-25 (requirement is satisfied). But the very presence and vigor of this
debate is important. The Constitution permits a State to follow one reasonable
professional view, while rejecting another. See Addington v. Texas,441
U.S. 418, 431 (1979). The psychiatric debate, therefore, helps to inform
the law by setting the bounds of what is reasonable, but it cannot here
decide just how States must write their laws within those bounds. See Jones,
supra, at 365, n. 13.

Second, Hendricks' abnormality does not consist simply of a long
course of antisocial behavior, but rather it includes a specific, serious,
and highly unusual inability to control his actions. (For example, Hendricks
testified that, when he gets "stressed out," he cannot "control the urge"
to molest children, see ante, at 7.) The law traditionally has considered
this kind of abnormality akin to insanity for purposes of confinement.
See, e. g., Minnesota ex rel. Pearson v. Probate Court
of Ramsey Cty.,309
U.S. 270, 274 (1940) (upholding against a due process challenge the
civil confinement of a dangerous person where the danger flowed from an
" `utter lack of power to control . . . sexual impulses' ") (quoting State
exrel. Pearson v. Probate Court of Ramsey Cty, 205 Minn. 545,
555, 287 N. W. 297, 302 (1939)); 1788 N. Y. Laws, ch. 31 (permitting confinement
of those who are "furiously mad"); In re Oakes, 8 Law Rep. 122,
125 (Mass. 1845) (Shaw, C. J.); A. Deutsch, The Mentally Ill in America
419-420 (1949) (tracing history of commitment of furiously mad people in
18th and 19th centuries); Dershowitz, The Origins of Preventative Confinement
in Anglo American Law--Part II: The American Experience, 43 U. Cin. L.
Rev. 781 (1974). Indeed, the notion of an "irresistible impulse" often
has helped to shape criminal law's insanity defense and to inform the related
recommendations of legal experts as they seek to translate the insights
of mental health professionals into workable legal rules. See also American
Law Institute, Model Penal Code §4.01 (insanity defense, in part,
rests on inability "to conform . . . conduct to the requirements of law");
A. Goldstein, The Insanity Defense 67-79 (1967) (describing "irresistible
impulse" test).

Third, Hendricks' mental abnormality also makes him dangerous.
Hendricks "has been convicted of . . . a sexually violent offense," and
a jury found that he "suffers from a mental abnormality . . . which makes"
him "likely to engage" in similar "acts of sexual violence" in the future.
Kan. Stat. Ann. §§59-29a02, 59-29a03 (1994). The evidence at
trial favored the State. Dr. Befort, for example, explained why Hendricks
was likely to commit further acts of sexual violence if released. See,
e.g., App. 248-254. And Hendricks' own testimony about what happens
when he gets "stressed out" confirmed Dr. Befort's diagnosis.

Because (1) many mental health professionals consider pedophilia
a serious mental disorder; and (2) Hendricks suffers from a classic case
of irresistible impulse, namely he is so afflicted with pedophilia that
he cannot "control the urge" to molest children; and (3) his pedophilia
presents a serious danger to those children; I believe that Kansas can
classify Hendricks as "mentally ill" and "dangerous" as this Court used
those terms in Foucha.

The Kansas Supreme Court's contrary conclusion rested primarily
upon that court's view that Hendricks would not qualify for civil commitment
under Kansas own state civil commitment statute. The issue before us, however,
is one of constitutional interpretation. The Constitution does not require
Kansas to write all of its civil commitment rules in a single statute or
forbid it to write two separate statutes each covering somewhat different
classes of committable individuals. Moreover, Hendricks apparently falls
outside the scope of the Kansas general civil commitment statute because
that statute permits confinement only of those who "lac[k] capacity to
make an informed decision concerning treatment." Kan. Stat. Ann. §59-2902(h)
(1994). The statute does not tell us why it imposes this requirement. Capacity
to make an informed decision about treatment is not always or obviously
incompatible with severe mental illness. Neither Hendricks nor his amici
point to a uniform body of professional opinion that says as much, and
we have not found any. See, e.g., American Psychiatric Assn., Guidelines
for Legislation on the Psychiatric Hospitalization of Adults, 140 Am. J.
Psychiatry 672, 673 (1983); Stromberg & Stone, A Model State Law on
Civil Commitment of the Mentally Ill, 20 Harv. J. Legis. 275, 301-302 (1983);
DeLand & Borenstein, Medicine Court, II, Rivers in Practice,
147 Am. J. Psychiatry 38 (1990). Consequently, the boundaries of the federal
Constitution and those of Kansas' general civil commitment statute are
not congruent.

The Kansas Supreme Court also held that the Due Process Clause requires
a State to provide treatment to those whom it civilly confines (as "mentally
ill" and

"dangerous"). It found that Kansas did not provide Hendricks with significant
treatment. And it concluded that Hendricks' confinement violated the Due
Process Clause for this reason as well.

This case does not require us to consider whether the Due Process Clause
always requires treatment--whether, for example, it would forbid
civil confinement of an untreatable mentally ill, dangerous person.
To the contrary, Kansas argues that pedophilia is an "abnormality" or "illness"
that can be treated. See Tr. of Oral Arg. 12 (Kansas Attorney General,
in response to the question "you're claiming that there is some treatability
. . . ?" answering "[a]bsolutely"); Brief for Petitioner 42-47. Two groups
of mental health professionals agree. Brief for the Association for the
Treatment of Sexual Abusers as Amicus Curiae 11-12 (stating that
"sex offenders can be treated" and that "increasing evidence" shows that
"state of the art treatment programs . . . significantly reduce recidivism");
Brief for the Menninger Foundation et al. as Amici Curiae 28. Indeed,
no one argues the contrary. Hence the legal question before us is whether
the Clause forbids Hendricks' confinement unless Kansas provides him with
treatment that it concedes is available.

Nor does anyone argue that Kansas somehow could have violated
the Due Process Clause's treatment concerns had it provided Hendricks
with the treatment that is potentially available (and I do not see how
any such argument could succeed). Rather, the basic substantive due process
treatment question is whether that Clause requires Kansas to provide treatment
that it concedes is potentially available to a person whom it concedes
is treatable. This same question is at the heart of my discussion of whether
Hendricks' confinement violates the Constitution's Ex Post-Facto
Clause. See infra, at 11-16, 17, 19-21. For that reason, I shall
not consider the substantive due process treatment question separately,
but instead shall simply turn to the Ex Post-Facto Clause discussion.
As Justice Kennedy points out, ante, at 1-3, some of the matters
there discussed may later prove relevant to substantive due process analysis.

Kansas' 1994 Act violates the Federal Constitution's prohibition of
"any . . . ex post-facto Law" if it "inflicts" upon Hendricks "a
greater punishment" than did the law "annexed to" his "crime[s]" when he
"committed" those crimes in 1984. Calder v. Bull, 3 Dall.
386, 390 (1798) (opinion of Chase, J.); U. S. Const., Art. I, §10.
The majority agrees that the Clause " `forbids the application of any new
punitive measure to a crime already consummated.'" California Dept.
of Corrections v. Morales, 514 U. S. ___ (1995) (slip op., at
5) (citation omitted; emphasis added). Ante, at 23-24. But it finds
the Act is not "punitive." With respect to that basic question, I disagree
with the majority.

Certain resemblances between the Act's "civil commitment" and
traditional criminal punishments are obvious. Like criminal imprisonment,
the Act's civil commitment amounts to "secure" confinement, Kan. Stat.
Ann. §59" 29a07(a) (1994), and "incarceration against one's will."
In re Gault, 387
U.S. 1, 50 (1967). See Testimony of Terry Davis, SRS Director of Quality
Assurance (App. 52-54, 78-81) (confinement takes place in the psychiatric
wing of a prison hospital where those whom the Act confines and ordinary
prisoners are treated alike). Cf. Browning Ferris Industries of Vt.,
Inc. v. Kelco Disposal, Inc.,492
U.S. 257, 298 (1989) (O'Connor, J., concurring in part and dissenting
in part). In addition, a basic objective of the Act is incapacitation,
which, as Blackstone said in describing an objective of criminal law, is
to "depriv[e] the party injuring of the power to do future mischief." 4
W. Blackstone, Commentaries*11-*12 (incapacitation is one important purpose
of criminal punishment); see also Foucha, 504 U. S., at 99 (Kennedy,
J., dissenting) ("Incapacitation for the protection of society is not an
unusual ground for incarceration"); United States v. Brown,381
U.S. 437, 458 (1965) (punishment's "purposes: retributive, rehabilitative,
deterrent--and preventative. One of the reasons society imprisons those
convicted of crimes is to keep them from inflicting future harm, but that
does not make imprisonment any the less punishment"); 1 W. LaFave &
A. Scott, Substantive Criminal Law §1.5, p. 32 (1986); 18
U.S.C. § 3553(a); United States Sentencing Guidelines, Guidelines
Manual, ch. 1, pt. A (Nov. 1995).

Moreover, the Act, like criminal punishment, imposes its confinement
(or sanction) only upon an individual who has previously committed a criminal
offense. Kan. Stat. Ann. §§59-29a02(a), 59-29a03(a) (1994). Cf.
Department of Revenue of Mont. v. Kurth Ranch,511
U.S. 767, 781 (1994) (fact that a tax on marijuana was "conditioned
on the commission of a crime" is " `significant of [its] penal and prohibitory
intent' ") (citation omitted); Lipke v. Lederer,259
U.S. 557, 561-562 (1922). And the Act imposes that confinement through
the use of persons (county prosecutors), procedural guarantees (trial by
jury, assistance of counsel, psychiatric evaluations), and standards ("beyond
a reasonable doubt") traditionally associated with the criminal law. Kan.
Stat. Ann. §§59-29a06, 59-29a07 (1994).

These obvious resemblances by themselves, however, are not legally
sufficient to transform what the Act calls "civil commitment" into a criminal
punishment. Civil commitment of dangerous, mentally ill individuals by
its very nature involves confinement and incapacitation. Yet "civil commitment,"
from a constitutional perspective, nonetheless remains civil. Allen
v. Illinois,478
U.S. 364, 369-370 (1986). Nor does the fact that criminal behavior
triggers the Act make the critical difference. The Act's insistence upon
a prior crime, by screening out those whose past behavior does not concretely
demonstrate the existence of a mental problem or potential future danger,
may serve an important noncriminal evidentiary purpose. Neither is the
presence of criminal law type procedures determinative. Those procedures
can serve an important purpose that in this context one might consider
noncriminal, namely helping to prevent judgmental mistakes that would wrongly
deprive a person of important liberty. Id., at 371-372.

If these obvious similarities cannot by themselves prove that
Kansas' "civil commitment" statute is criminal, neither can the word "civil"
written into the statute, §59-29a01, by itself prove the contrary.
This Court has said that only the "clearest proof" could establish that
a law the legislature called "civil," was, in reality a "punitive" measure.
United States v. Ward,448
U.S. 242, 248-249 (1980). But the Court has also reiterated that a
"civil label is not always dispositive," Allen v. Illinois, supra,
at 369; it has said that in close cases the label is " `not of paramount
importance,' " Kurth Ranch,supra, at 777 (citation omitted);
and it has looked behind a "civil" label fairly often. E.g.,United
States v. Halper,490
U.S. 435, 447 (1989).

In this circumstance, with important features of the Act pointing
in opposite directions, I would place particular importance upon those
features that would likely distinguish between a basically punitive and
a basically nonpunitive purpose. United States v. Ursery,
518 U. S. ___, ___ (1996) (slip op., at 9) (asking whether a statutory
scheme was so punitive " `either in purpose or effect' " to negate the
legislature's " `intention to establish a civil remedial mechanism' ")
(citations omitted). And I note that the Court, in an earlier civil commitment
case, Allen v. Illinois, 478 U. S., at 369, looked primarily to
the law's concern for treatment as an important distinguishing feature.
I do not believe that Allen means that a particular law's lack of
concern for treatment, by itself, is enough to make an incapacitative law
punitive. But, for reasons I will point out, when a State believes that
treatment does exist, and then couples that admission with a legislatively
required delay of such treatment until a person is at the end of his jail
term (so that further incapacitation is therefore necessary), such a legislative
scheme begins to look punitive.

In Allen, the Court considered whether, for Fifth Amendment
purposes, proceedings under an Illinois statute were civil or "criminal."
The Illinois statute, rather like the Kansas statute here, authorized the
confinement of persons who were sexually dangerous, who had committed at
least one prior sexual assault, and who suffered from a "mental disorder."
Id., at 366, n. 1. The Allen Court, looking behind the statute's
"civil commitment" label, found the statute civil--in important part because
the State had "provided for the treatment of those it commits." Id.,
at 370 (also referring to facts that the State had "disavowed any interest
in punishment" and that it had "established a system under which committed
persons may be released after the briefest time in confinement").

In reaching this conclusion, the Court noted that the State Supreme
Court had found the proceedings " `essentially civil' " because the statute's
aim was to provide " `treatment, not punishment.' " Id., at 367
(quoting People v. Allen, 107 Ill. 2d 91, 99-101, 481 N.
E.2d 690, 694-695 (1985)). It observed that the State had "a statutory
obligation to provide `care and treatment . . . designed to effect recovery'
" in a "facility set aside to provide psychiatric care." 478 U. S., at
369 (quoting Ill. Rev. Stat., ch. 38, ¶105-8 (1985)). And it referred
to the State's purpose as one of "treating rather than punishing
sexually dangerous persons." 478 U. S., at 373; see also ibid. ("Had
petitioner shown, for example, that the confinement . . . imposes . . .
a regimen which is essentially identical to that imposed upon felons with
no need for psychiatric care, this might well be a different case").

The Allen Court's focus upon treatment, as a kind of touchstone
helping to distinguish civil from punitive purposes, is not surprising,
for one would expect a nonpunitive statutory scheme to confine, not simply
in order to protect, but also in order to cure. That is to say, one would
expect a nonpunitively motivated legislature that confines because of
a dangerous mental abnormality to seek to help the individual himself overcome
that abnormality (at least insofar as professional treatment for the abnormality
exists and is potentially helpful, as Kansas, supported by some groups
of mental health professionals, argues is the case here, see supra,
at 6). Conversely, a statutory scheme that provides confinement that does
not reasonably fit a practically available, medically oriented treatment
objective, more likely reflects a primarily punitive legislative purpose.

Several important treatment related factors--factors of a kind
that led the five member Allen majority to conclude that the Illinois'
legislature's purpose was primarily civil, not punitive--in this case suggest
precisely the opposite. First, the State Supreme Court here, unlike the
state court in Allen, has held that treatment is not a significant
objective of the Act. The Kansas court wrote that the Act's purpose is
"segregation of sexually violent offenders," with "treatment" a matter
that was "incidental at best." 259 Kan., at 258, 912 P. 2d, at 136. By
way of contrast, in Allen the Illinois court had written that "
`treatment, not punishment' " was "the aim of the statute." Allen,supra, at 367 (quoting People v. Allen, 107 Ill. 2d,
at 99-101, 481 N. E. 2d, at 694-695).

We have generally given considerable weight to the findings of
state and lower federal courts regarding the intent or purpose underlying
state officials' actions, see U. S. Term Limits, Inc. v. Thornton,
514 U. S. ___ ,___ (1995) (slip op., at 52) (ordinarily "[w]e must . .
. accept the State Court's view of the purpose of its own law"); Romer
v. Evans, 517 U. S. ___ , ___ (1996) (slip op., at 4); Hernandez
v. New York,500
U.S. 352, 366-370 (1991) (plurality); id., at 372 (O'Connor,
J., concurring); Edwards v. Aguillard,482
U.S. 578, 594, n. 15 (1987); but see Department of Revenue of Mont.
v. Kurth Ranch, 511 U. S., at 776, 780, n. 18; Stone v. Graham,449
U.S. 39, 40-43 (1980) (per curiam);Consolidated Edison Co.
of N. Y. v. Public Serv. Comm'n of N. Y.,447
U.S. 530, 533, 535-537 (1980), although the level of deference given
to such findings varies with the circumstances, Crawford v. Board
of Ed. of Los Angeles,458
U.S. 527, 544, n. 30 (1982), and is not always as conclusive as a state
court's construction of one of its statutes, see, e.g., R. A.
V. v. St. Paul,505
U.S. 377, 381 (1992). For example, Allen's dissenters, as well
as its majority, considered the state court's characterization of the state
law's purpose an important factor in determining the constitutionality
of that statute. Allen, supra, at 380 (Stevens, J., dissenting)
(describing the state court as "the final authority on the . . . purpose"
of the statute).

The record provides support for the Kansas court's conclusion.
The court found that, as of the time of Hendricks' commitment, the State
had not funded treatment, it had not entered into treatment contracts,
and it had little, if any, qualified treatment staff. See Hendricks,
912 P. 2d, at 131, 136; Testimony of Dr. Charles Befort, App. 255 (acknowledging
that he has no specialized training); Testimony of John House, SRS Attorney,
id., at 367 (no contract has been signed by bidders); Testimony
of John House, SRS Attorney, id., at 369 (no one hired to operate
SVP program or to serve as clinical director, psychiatrist, or psychologist).
Indeed, were we to follow the majority's invitation to look beyond the
record in this case, an invitation with which we disagree, see infra,
at 20-21, it would reveal that Hendricks, according to the commitment program's
own director, was receiving "essentially no treatment." Dr. Charles Befort
in State Habeas Corpus Proceeding, App. 393; 259 Kan., at 249, 258, 912
P. 2d, at 131, 136. See also App. 421 ("the treatment that is prescribed
by statute" is "still not available"); id., at 420-421 (the "needed
treatment" "hasn't been delivered yet" and "Hendricks has wasted ten months"
in "terms of treatment effects"); id., at 391-392 (Dr. Befort admitting
that he is not qualified to be SVP program director).

It is therefore not surprising that some of the Act's official
supporters had seen in it an opportunity permanently to confine dangerous
sex offenders, e.g., id., at 468 (statement of Attorney General
Robert Stephan); id., at 475-476, 478 (statement of Special Assistant
to the Attorney General Carla Stovall). Others thought that effective treatment
did not exist, id., at 503 (statement of Jim Blaufuss) ("Because
there is no effective treatment for sex offenders, this Bill may mean a
life sentence for a felon that is considered a risk to women and children.
SO BE IT!")--a view, by the way, that the State of Kansas, supported by
groups of informed mental health professionals, here strongly denies. See
supra, at 6.

The Kansas court acknowledged the existence of "provisions of the Act
for treatment" (although it called them "somewhat disingenuous"). 259 Kan.,
at 258, 912 P. 2d, at 136. Cf. Kan. Stat. Ann. §59-29a01 (1994) (legislative
findings that "prognosis for rehabilita[tion] . . . in a prison setting
is poor, . . . treatment needs . . . long term" and "commitment procedure
for . . . long term care and treatment . . . necessary"); §59-29a09
("commitment . . . shall conform to constitutional requirements for care
and treatment"). Nor did the court deny that Kansas could later increase
the amount of treatment it provided. But the Kansas Supreme Court could,
and did, use the Act's language, history, and initial implementation to
help it characterize the Act's primary purposes.

Second, the Kansas statute insofar as it applies to previously
convicted offenders, such as Hendricks, commits, confines, and treats those
offenders after they have served virtually their entire criminal
sentence. That time related circumstance seems deliberate. The Act explicitly
defers diagnosis, evaluation, and commitment proceedings until a few weeks
prior to the "anticipated release" of a previously convicted offender from
prison. Kan. Stat. Ann. §59-29a03(a)(1) (1994). But why, one might
ask, does the Act not commit and require treatment of sex offenders sooner,
say soon after they begin to serve their sentences?

An Act that simply seeks confinement, of course, would not need
to begin civil commitment proceedings sooner. Such an Act would have to
begin proceedings only when an offender's prison term ends, threatening
his release from the confinement that imprisonment assures. But it is difficult
to see why rational legislators who seek treatment would write the Act
in this way--providing treatment years after the criminal act that indicated
its necessity. See, e.g., Wettstein, A Psychiatric Perspective on
Washington's Sexually Violent Predators Statute, 15 U. Puget Sound L. Rev.
597, 617 (1992) (stating that treatment delay leads to "loss of memory"
and makes it "more difficult for the offender" to "accept responsibility,"
and that time in prison leads to attitude hardening that "engender[s] a
distorted view of the precipitating offense"). And it is particularly difficult
to see why legislators who specifically wrote into the statute a finding
that "prognosis for rehabilitating . . . in a prison setting is poor" would
leave an offender in that setting for months or years before beginning
treatment. This is to say, the timing provisions of the statute confirm
the Kansas Supreme Court's view that treatment was not a particularly important
legislative objective.

I recognize one possible counterargument. A State, wanting both
to punish Hendricks (say, for deterrence purposes) and also to treat him,
might argue that it should be permitted to postpone treatment until after
punishment in order to make certain that the punishment in fact occurs.
But any such reasoning is out of place here. Much of the treatment that
Kansas offered here (called "ward milieu" and "group therapy") can be given
at the same time as, and in the same place where, Hendricks serves his
punishment. See, e.g., Testimony of Leroy Hendricks, id., 142-143,
150, 154, 179-181 (stating that Washington and Kansas had both provided
group therapy to Hendricks, and that he had both taken and refused such
treatment at various points); Testimony of Terry Davis, SRS Director of
Quality Assurance, id., at 78-81 (pointing out that treatment under
the Act takes place in surroundings very similar to those in which prisoners
receive treatment); Testimony of John House, SRS Attorney, id.,
at 375-376. See also Task Force on Community Protection, Final Report to
Booth Gardner, Governor State of Washington II 2 (1989) (findings of Task
Force that developed the Washington State Act, which served as a model
for Kansas' Act, stating that "[s]ex offenders can be treated during incarceration").
The evidence adduced at the state habeas proceeding, were we to assume
it properly before the Court, see infra, at 20-21, supports this
conclusion as well. See Testimony of Dr. Befort at State Habeas Proceeding,
App. 399, 406-408 (describing treatment as ward milieu and group therapy);
id., at 416-417 (stating that Kansas offers similar treatment, on
a voluntary basis, to prisoners). Hence, assuming arguendo that it would
be otherwise permissible, Kansas need not postpone treatment in order to
make certain that sex offenders serve their full terms of imprisonment,
i.e., to make certain that they receive the entire punishment that
Kansas criminal law provides. To the contrary, the statement in the Act
itself, that the Act aims to respond to special "long term" "treatment
needs," suggests that treatment should begin during imprisonment. It also
suggests that, were those long term treatment needs (rather than further
punishment) Kansas' primary aim, the State would require that treatment
begin soon after conviction, not 10 or more years later. See also Vt. Stat.
Ann., Tit. 18, §2815 (1959) (providing for treatment of sexual psychopaths
first, and punishment afterwards).

Third, the statute, at least as of the time Kansas applied it
to Hendricks, did not require the committing authority to consider the
possibility of using less restrictive alternatives, such as postrelease
supervision, halfway houses, or other methods that amici supporting
Kansas here have mentioned. Brief for the Menninger Foundation et al. as
Amici Curiae 28; Brief for the Association for the Treatment of
Sexual Abusers as Amicus Curiae 11-12. The laws of many other States
require such consideration. See Appendix, infra.

This Court has said that a failure to consider, or to use, "alternative
and less harsh methods" to achieve a nonpunitive objective can help to
show that legislature's "purpose . . . was to punish." Bell v. Wolfish,441
U.S. 520, 539, n. 20 (1979). And one can draw a similar conclusion
here. Legislation that seeks to help the individual offender as well as
to protect the public would avoid significantly greater restriction of
an individual's liberty than public safety requires. See Keilitz, Conn,
& Gianpetro, Least Restrictive Treatment of Involuntary Patients: Translating
Concepts into Practice, 29 St. Louis U. L. J. 691, 693 (1985) (describing
"least restrictive alternativ[e]" provisions in the ordinary civil commitment
laws of almost all States); Lyon, Levine, & Zusman, Patients' Bill
of Rights: A Survey of State Statutes, 6 Mental Disability L. Rep. 178,
181-183 (1982) (same). Legislation that seeks almost exclusively to incapacitate
the individual through confinement, however, would not necessarily concern
itself with potentially less restrictive forms of incapacitation. I would
reemphasize that this is not a case in which the State claims there is
no treatment potentially available. Rather, Kansas, and supporting amici,
argue that pedophilia is treatable. See supra, at 6.

Fourth, the laws of other States confirm, through comparison,
that Kansas' "civil commitment" objectives do not require the statutory
features that indicate a punitive purpose. I have found 17 States with
laws that seek to protect the public from mentally abnormal, sexually dangerous
individuals through civil commitment or other mandatory treatment programs.
Ten of those statutes, unlike the Kansas statute, begin treatment of an
offender soon after he has been apprehended and charged with a serious
sex offense. Only seven, like Kansas, delay "civil" commitment (and treatment)
until the offender has served his criminal sentence (and this figure includes
the Acts of Minnesota and New Jersey, both of which generally do not delay
treatment). Of these seven, however, six (unlike Kansas) require consideration
of less restrictive alternatives. See Ariz. Rev. Stat. Ann. §§13-4601,
4606B (Supp. 1996-1997); Cal. Welf. & Inst. Code Ann. §§6607,
6608 (West Supp. 1997); Minn. Stat. §253B.09 (1996); N. J. Stat. Ann.
30:4-27.11d (West 1997); Wis. Stat. §980.06(2)(b)) (Supp. 1993-1994);
Wash. Rev. Code Ann. §71.09.090 (Supp. 1996-1997). Only one State
other than Kansas, namely Iowa, both delays civil commitment (and consequent
treatment) and does not explicitly consider less restrictive alternatives.
But the law of that State applies prospectively only, thereby avoiding
ex post-facto problems. See Iowa Code Ann. §709C.12 (Supp.
1997) (Iowa SVP act only "applies to persons convicted of a sexually violent
offense on or after July 1, 1997"); see also Appendix, infra. Thus
the practical experience of other States, as revealed by their statutes,
confirms what the Kansas Supreme Court's finding, the timing of the civil
commitment proceeding, and the failure to consider less restrictive alternatives,
themselves suggest, namely, that for Ex Post-Facto Clause purposes,
the purpose of the Kansas Act (as applied to previously convicted offenders)
has a punitive, rather than a purely civil, purpose.

Kansas points to several cases as support for a contrary conclusion.
It points to Allen--which is, as we have seen, a case in which the
Court concluded that Illinois' "civil commitment" proceedings were not
criminal. I have explained in detail, however, how the statute here differs
from that in Allen, and why Allen's reasoning leads to a
different conclusion in this litigation. See supra, at 9-16.

Kansas also points to Addington v. Texas, where
the Court held that the Constitution does not require application of criminal
law's "beyond a reasonable doubt" standard in a civil commitment proceeding.
441 U. S., at 428. If some criminal law guarantees such as "reasonable
doubt" did not apply in Addington, should other guarantees, such
as the prohibition against ex post-facto laws, apply here? The answer
to this question, of course, lies in the particular statute at issue in
Addington--a Texas statute that, this Court observed, did "not exercis[e]"
state power "in a punitive sense." Ibid. That statute did not add
civil commitment's confinement to imprisonment; rather civil commitment
was, at most, a substitute for criminal punishment. See Tex. Rev. Civ.
Stat. Ann. §5547-41 (1958) (petition must state "proposed patient
is not charged with a crime or . . . charged [but] . . . transferred .
. . for civil commitment proceedings"). And this Court, relying on the
Texas Supreme Court's interpretation, wrote that the "State of Texas confines
only for the purpose of providing care designed to treat the individual."
Addington,supra, at 428, n. 4 (citing State v. Turner,
556 S. W. 2d 563, 566 (1977)). Cf. Specht v. Patterson,386
U.S. 605, 608-609 (1967) (separate postconviction sexual psychopath
commitment/sentencing proceeding held after conviction for serious sex
crime, imposes a "criminal punishment even though . . . designed not so
much as retribution as . . . to keep individuals from inflicting future
harm"). Nothing I say here would change the reach or holding of Addington
in any way. That is, a State is free to commit those who are dangerous
and mentally ill in order to treat them. Nor does my decision preclude
a State from deciding that a certain subset of people are mentally ill,
dangerous, and untreatable, and that confinement of this subset is therefore
necessary (again, assuming that all the procedural safeguards of Addington
are in place). But when a State decides offenders can be treated and confines
an offender to provide that treatment, but then refuses to provide it,
the refusal to treat while a person is fully incapacitated begins to look
punitive.

The majority suggests that this is the very case I say it is not,
namely a case of a mentally ill person who is untreatable. Ante, at
18. And it quotes a long excerpt from the Kansas Supreme Court's opinion
in support. That court, however, did not find that Hendricks was untreatable;
it found that he was untreated--quite a different matter. Had the
Kansas Supreme Court thought that Hendricks, or others like him, are untreatable,
it could not have written the words that follow that excerpt, adopting
by reference the words of another court opinion:

"The statute forecloses the possibility
that offenders will be evaluated and treated until after they have been
punished. . . . Setting aside the question of whether a prison term exacerbates
or minimizes the mental condition of a sex offender, it plainly delays
the treatment that must constitutionally accompany commitment pursuant
to the Statute. The failure of the Statute to provide for examination or
treatment prior to the completion of the punishment phase strongly suggests
that treatment is of secondary, rather than primary, concern." 259 Kan.,
at 258, 912 P. 2d, at 136 (quoting Young v. Weston, 898 F.
Supp. 744, 753 (WD Wash. 1995)).

This quotation, and the rest of the opinion,
make clear that the court is finding it objectionable that the Statute,
among other things, has not provided adequate treatment to one who, all
parties here concede, can be treated.

The majority suggests in the alternative that recent evidence
shows that Kansas is now providing treatment. Ante, at 19-21. That
evidence comes from two sources. First, a statement by the Kansas Attorney
General at oral argument that those committed under the Act are now receiving
treatment. Ante, at 20-21. And second, in a footnote, a Kansas trial
judge's statement, in a state habeas proceeding nearly one year after Hendricks
was committed, that Kansas is providing treatment. Ante, at 21 n.
5. I do not see how either of these statements can be used to justify the
validity of the Act's application to Hendricks at the time he filed suit.

We are reviewing the Kansas Supreme Court's determination of Hendricks'
case. Neither the majority nor the lengthy dissent in that court referred
to the two facts that the majority now seizes upon, and for good reason.
That court denied a motion to take judicial notice of the state habeas
proceeding, see Order of Kansas Supreme Court, No. 94-73039,
March 1, 1996. The proceeding is thus not part of the record, and cannot
properly be considered by this Court. And the Kansas Supreme Court obviously
had no chance to consider Kansas' new claim made at oral argument before
this Court. There is simply no evidence in the record before this Court
that comes even close to resembling the assertion Kansas made at oral argument.
It is the record, not the parties' view of it, that must control our decision.
See Russell v. Southard, 12 How. 139, 158-159 (1851); Adickes
v. S. H. Kress & Co.,398
U.S. 144, 157-158, n. 16 (1970); Hopt v. Utah,114
U.S. 488, 491-492 (1885); Witters v. Washington Dept. of
Servs. for Blind,474
U.S. 481, 489 n. 3 (1986); New Haven Inclusion Cases,399
U.S. 392, 450, n. 66 (1970); R. Stern, E. Gressman, S. Shapiro, K.
Geller, Supreme Court Practice 555-556, 594 (7th ed. 1993); Fed. Rule Evid.
201(b).

The prohibition on facts found outside the record is designed
to ensure the reliability of the evidence before the Court. For purposes
of my argument in this dissent, however, the material that the majority
wishes to consider, when read in its entirety, show that Kansas was not
providing treatment to Hendricks. At best, the testimony at the state hearing
contained general and vague references that treatment was about to be provided,
but it contains no statement that Hendricks himself was receiving
treatment. And it provides the majority with no support at all in respect
to that key fact. Indeed, it demonstrates the contrary conclusion. For
example, the program's director, Dr. Befort, testified that he would have
to tell the court at Hendricks' next annual review, in October 1995, that
Hendricks "has had no opportunity for meaningful treatment." App. 400.
He also stated that SVPs were receiving "essentially no treatment" and
that the program does not "have adequate staffing." Id., at 393,
394. And Dr. Befort's last words made clear that Hendricks has "wasted
ten months . . . in terms of treatment effects" and that, as far as treatment
goes, "[t]oday, it's still not available." Id., at 420-421. Nor
does the assertion made by the Kansas Attorney General at oral argument
help the majority. She never stated that Hendricks, as opposed to
other SVPs, was receiving this treatment. And we can find no support for
her statement in the record.

We have found no other evidence in the record to support the conclusion
that Kansas was in fact providing the treatment that all parties agree
that it could provide. Thus, even had the Kansas Supreme Court considered
the majority's new evidence--which it did not--it is not likely to have
changed its characterization of the Act's treatment provisions as "somewhat
disingenuous." 259 Kan., at 258, 912 P. 2d, at 136.

Regardless, the Kansas Supreme court did so characterize the Act's
treatment provisions and did find that treatment was "at best" an "incidental"
objective. Thus, the circumstances here are different from Allen,
where the Illinois Supreme Court explicitly found that the statute's aim
was to provide treatment, not punishment. See supra, at 10-12. There
is no evidence in the record that contradicts the finding of the Kansas
court. Thus, Allen's approach--its reliance on the State court--if
followed here would mean the Act as applied to Leroy Hendricks (as
opposed to others who may have received treatment or who were sentenced
after the effective date of the Act), is punitive.

Finally, Kansas points to United States v. Salerno,481
U.S. 739 (1987), a case in which this Court held preventive detention
of a dangerous accused person pending trial constitutionally permissible.
Salerno, however, involved the brief detention of that person, after
a finding of "probable cause" that he had committed a crime that would
justify further imprisonment, and only pending a speedy judicial determination
of guilt or innocence. This Court, in Foucha, emphasized the fact
that the confinement at issue in Salerno was "strictly limited in
duration." 504 U. S., at 82. It described that "pretrial detention of arrestees"
as "one of those carefully limited exceptions permitted by the Due Process
Clause." Id., at 83. And it held that Salerno did not authorize
the indefinite detention, on grounds of dangerousness, of "insanity acquittees
who are not mentally ill but who do not prove they would not be dangerous
to others." 504 U. S., at 83. Whatever Salerno's "due process" implications
may be, it does not focus upon, nor control, the question at issue here,
the question of "punishment" for purposes of the Ex Post-Facto Clause.

One other case warrants mention. In Kennedy v. Mendoza-Martinez,372
U.S. 144 (1963), this Court listed seven factors that helped it determine
whether a particular statute was primarily punitive for purposes of applying
the Fifth and Sixth
Amendments. Those factors include whether a sanction involves an affirmative
restraint, how history has regarded it, whether it applies to behavior
already a crime, the need for a finding of scienter, its relationship to
a traditional aim of punishment, the presence of a nonpunitive alternative
purpose, and whether it is excessive in relation to that purpose. Id.,
at 169. This Court has said that these seven factors are "neither exhaustive
nor dispositive," but nonetheless "helpful." Ward, 448 U. S., at
249. Paraphrasing them here, I believe the Act before us involves an affirmative
restraint historically regarded as punishment; imposed upon behavior already
a crime after a finding of scienter; which restraint, namely confinement,
serves a traditional aim of punishment, does not primarily serve an alternative
purpose (such as treatment) and is excessive in relation to any alternative
purpose assigned. 372 U. S., at 168-169.

This is to say that each of the factors the Court mentioned in
Martinez Mendoza on balance argues here in favor of a constitutional
characterization as "punishment." It is not to say that I have found "a
single `formula' for identifying those legislative changes that have a
sufficient effect on substantive crimes or punishments to fall within the
constitutional prohibition," Morales, 514 U. S., at ___ (slip op.,
at 9); see also Halper, 490 U. S., at 447; id., at 453 (Kennedy,
J., concurring). We have not previously done so, and I do not do so here.
Rather, I have pointed to those features of the Act itself, in the context
of this litigation, that lead me to conclude, in light of our precedent,
that the added confinement the Act imposes upon Hendricks is basically
punitive. This analysis, rooted in the facts surrounding Kansas' failure
to treat Hendricks, cannot answer the question whether the Kansas Act,
as it now stands, and in light of its current implementation, is punitive
towards people other than he. And I do not attempt to do so here.

To find that the confinement the Act imposes upon Hendricks is "punishment"
is to find a violation of the Ex Post-Facto Clause. Kansas does
not deny that the 1994 Act changed the legal consequences that attached
to Hendricks earlier crimes, and in a way that significantly "disadvantage[d]
the offender," Weaver v. Graham,450
U.S. 24, 29 (1981). See Brief for Respondent State of Kansas 37-39.

To find a violation of that Clause here, however, is not to hold
that the Clause prevents Kansas, or other States, from enacting dangerous
sexual offender statutes. A statute that operates prospectively, for example,
does not offend the Ex Post-Facto Clause. Weaver, 450 U.
S., supra, at 29. Neither does it offend the Ex Post-Facto Clause
for a State to sentence offenders to the fully authorized sentence, to
seek consecutive, rather than concurrent, sentences, or to invoke recidivism
statutes to lengthen imprisonment. Moreover, a statute that operates retroactively,
like Kansas' statute, nonetheless does not offend the Clause if the
confinement that it imposes is not punishment--if, that is to say,
the legislature does not simply add a later criminal punishment to an earlier
one. Ibid.

The statutory provisions before us do amount to punishment primarily
because, as I have said, the legislature did not tailor the statute to
fit the nonpunitive civil aim of treatment, which it concedes exists in
Hendricks' case. The Clause in these circumstances does not stand as an
obstacle to achieving important protections for the public's safety; rather
it provides an assurance that, where so significant a restriction of an
individual's basic freedoms is at issue, a State cannot cut corners. Rather,
the legislature must hew to the Constitution's liberty protecting line.
See The Federalist, No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamilton).